The Facts
1. The Fifth Amendment says, “No person shall...be deprived of life, liberty, or property, without due process of law.”

2. The Sixth Amendment says, “In all criminal prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defense.”

3. The Fourteenth Amendment says, “no state shall... deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

Capital Cases
4. In Powell v. Alabama, 287 U.S. 45 (1932) the U.S. Supreme Court overturned the convictions of African-American defendants rushed to trial for capital offenses without a lawyer's help in their defense. The Court held that, under the Fourteenth Amendment, this violated their right to due process of law.

Federal Cases
5. In Johnson v. Zerbst, 304 U.S. 458 (1938), the Supreme Court held that the Sixth Amendment required a lawyer to be appointed in all federal criminal cases.

State Cases
6. In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court extended the requirement of counsel for the accused to persons charged with a felony in state courts. The Court held that “the Sixth Amendment's guarantee of counsel is... one of those fundamental rights” protected by the due process clause of the Fourteenth Amendment. The Court explained that “any person...too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him.”

7. In Argersinger v. Hamlin, 407 U.S. 25 (1972), the Court extended the right to counsel to misdemeanor cases that might result in a person found guilty serving time in prison.

Right to a Lawyer Before Trial
8. Many cases deal with this right. The famous Supreme Court case of Miranda v. Arizona, 384 U.S. 436 (1966), is largely about protection from self-incrimination, and the right to a lawyer included there is seen in that context. Miranda extended certain rights to suspects in custody. These included the right to remain silent, the right to be told that any statement made may be used against the accused person, the right to have an attorney present during questioning, and the right to have an attorney appointed before questioning if the accused person wants a lawyer and cannot afford one.

Juvenile Proceedings
9. In In re Gault, 387 U.S. 1 (1967), the Court extended the right to counsel to juveniles facing trial-like court hearings in juvenile court.

Today’s Legal Services for Indigent Defendants
10. There are three primary models for providing representation to those accused of crimes and unable to afford counsel

• The public defender model involves public or private nonprofit organizations with full- or part-time staff attorneys and support personnel;
• The assigned counsel model involves the assignment of indigent criminal cases to private attorneys on either a systematic or an ad hoc basis;
• The contract model involves a private bar contract with an attorney, a group of attorneys, a bar association, or a private nonprofit organization that will provide representation in some or all of the indigent cases in the jurisdiction.

Discussion Questions

1. Adequate funding of public defender offices is a continuing problem. Given the sometimes severe financial limitations of these offices, which can lead to very large case loads, can we expect all public defenders to offer effective assistance to their indigent clients? If not, what needs to be done?
2. With assigned counsel programs, inadequate fees are a continuing problem affecting the quality of representation (often, the set fees are insufficient to compensate private attorneys for their work, and sometimes don’t even cover the attorneys’ overhead costs—this creates a financial disincentive to providing the necessary hours for quality representation). How can we advocate and secure the necessary fee increases?
3. With contract programs, there are problems inherent in low-cost bidding for contracts to provide indigent defense services. Can justice be served by the lowest bidder? What can be done to assure the necessary level of services?
4. What role should defenders of the indigent play in shaping a justice system serious about crime prevention, rehabilitation, and restitution?
5. What other resources would help defenders of the indigent do their jobs? (For example, with the help of social workers, defender offices might seek to prevent recidivism through creative approaches to treatment of the underlying causes of criminal activity, such as alcohol and drug abuse.)